ORIGINAL
I200 EIGHTEENTH STREET, NW
WASHINGTON, DC 20036
TEL 202.730.1300 FAX 202.730.1301
WWW.HARRISWILTSHIRE.COM
ORIGINAL ATTORNEYS AT LAW
BY HAND DELIVERY
Ms. Magalie Roman Salas
Secretary
Federal Communications Commission
445 Twelfth Street, S.W.
Washington, DC 20554
January 13,200O
Re: WT Docket No. 99=?95-
Dear Ms. Salas:
Enclosed you will find an original and four copies of the Comments being submitted by
Microsoft Corporation in the above referenced proceeding. Also enclosed is a diskette
with the comments in the following electronic formats: (1) Word (.doc); (2) Rich Text
Format (.rtf); (3) Text (.txt); and accessible Hypertext Markup Language (.htm).
As directed in the NOI, we are also providing a copy of the diskette to Al McCloud of the
Commission's Network Services Division, Common Carrier Bureau, and to International
Transcription Service.
Please direct any questions regarding this filing to me.
Respectfully submitted,
Enclosures
cc:
Al McCloud
International Transcription Service
ORIGINAL
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
In the Matter of >
>
IMPLEMENTATION OF SECTIONS 255 AND 251(a)(2) 1
OF THE COMMUNICATIONS ACT OF 1934, AS ENACTED )
BY THE TELECOMMUNICATIONS ACT OF 1996 > WT Docket No. 96-198
>
ACCESS TO TELECOMMUNICATIONS SERVICE, >
TELECOMMUNICATIONS EQUIPMENT AND CUSTOMER )
PREMISES EQUIPMENT BY PERSONS WITH DISABILITIES )
COMMENTS OF MICROSOFT CORPORATION
Microsoft Corporation submits these comments in response to the further Notice
of Inquiry ("NOI")' on the implementation of Section 255 of the Communications Act of
1934, as amended, with respect to emerging technologies and the extent to which
government regulation may be necessary to ensure accessibility of telecommunications
technology for people with disabilities.
Microsoft fully supports the objectives of Section 255. We also compliment the
Commission for its diligent efforts to implement a short, but notably complex, statute. As
telecommunication has become an increasingly important and ubiquitous part of
everyday life, ensuring that people with disabilities are not left behind takes on ever
increasing importance. The rules adopted by the Commission earlier in this proceeding
1 Implementation of Sections 255 and 251 (a)(Z) of the Communications Act of 1934, as Enacted by
the Telecommunications Act of 1996, Report and Order and Further Notice of Inquiry, FCC 99-
18 1 (released Sept. 29, 1999)("NOf `).
1
_.- ,-.-. ..^ _ . -.-_~.- ^. -._._...- .._l^. ,,__ -^__ ._ .._ _-_I"--- ..-_ - _ -^.. ._^." .- --.-
are an important step toward further opening telecommunications systems and the
benefits of the Information Age to the disabilities community.
Like the Commission, Microsoft also recognizes that the rapid pace of
technological developments in telecommunications-related services and equipment could
diminish the utility of the Commission's accessibility rules to the extent that new
technologies assume architectures that are not currently covered. As the NOInotes, there
is an array of rapidly evolving, non-telecommunications services and products ("NTSPs")
- such as information services, non-telecom software, and customer equipment that does
not connect directly to the network -- that falls outside the ambit of the Commission's
Section 25.5 rules.2 The NO1 points out that if emerging technologies that provide
telecommunications-related capabilities remain outside the ambit of today's rules and
thwart the accessibility features of "covered" equipment, those with disabilities would
risk losing the benefits of the rules - a risk that should not be borne in our
telecommunications-dependent society. To mitigate that risk, the Commission has asked
how to grapple with two specific NTSPs - Internet telephony3 and equipment that is not
traditionally defined as CPE.
Microsoft believes that market forces can and should be the primary driver of
innovation in technology, and that in fact both the telecommunications industry and the
entirety of the information technology market is starting to drive progress in accessibility.
In adopting the initial Section 255 rules, the Commission held that there may be a role for
2 NOI at 1 173. For example, computer hardware and software that does not connect directly to the
telecommunications network has not traditionally been regarded as CPE and so would not be
covered. IL?. at 1 183.
3
Microsoft is a member of the Voice on the Net ("VON") Coalition, which is also filing comments
in response to the NOI on Internet telephony. Microsoft supports the work of the VON Coalition,
and will not address issues related to Internet telephony in these comments.
2
Commission regulation of NTSPs where necessary to ensure the accessibility of
fundamental telecommunications equipment and services. Given the jurisdictional issues
involved in imposing accessibility requirements upon NTSPs, the Commission must, as it
moves forward, carefully assess its limitations in this regard. However, assuming for
purposes of the NOI that Section 255 can extend to NTSPs, Microsoft would urge the
Commission to do so only where an NTSP is integral to and essentialfor making
telecommunications services and equipment accessible to persons with disabilities. We
believe that such an approach, if warranted and carefully implemented, would provide the
Commission with a mechanism through which its rules can evolve naturally as
technology evolves.
A.
Microsoft Has Been and Remains Committed to the Goal of Providing
Accessibility to People With Disabilities.
Although Section 255 focuses on telecommunications services and equipment,
and the NOI focuses on how to keep the Section 255 rules at pace with the evolution of
technology, Microsoft recognizes that there exists a larger concern about how people
with disabilities will keep pace with the plethora of high-tech tools and services, whether
those tools are regulated or not. Microsoft firmly believes that by its very nature
innovative technology can be a force that empowers people with disabilities in ways that
would have been unthinkable just a decade or two ago. In this regard, we also believe it
is useful to keep the record in this proceeding up to date on our various efforts to promote
such empowerment.
Microsoft has been deeply involved in the area of accessibility since 1988, when
it first provided a set of software add-ins called the Access Pack which was developed by
the Trace Research and Development Center at the University of Wisconsin-Madison as
3
part of a National Institute on Disability and Rehabilitation Research grant program.
Microsoft has continuously expanded the features of the Access Pack and has
incorporated those features directly into its Windows operating system. For example,
computers using Microsoft Windows 95 and Windows NT 4 included features
specifically designed for individuals who have difficulty typing or using a mouse, who
are deaf or hard-of-hearing, or who have moderately impaired vision. Windows 98
added new features like an Accessibility Configuration Wizard that could help people
adapt Windows' options to their needs and preferences, as well as a low-end screen
magnifier. Windows 2000 retains these features and adds a text to speech utility that
helps people with vision impairments perform basic system configuration and repair as
well as work on unfamiliar machines. Microsoft has also incorporated accessibility
features into many of its other products, including its word processing software and
multimedia encyclopedia.
In addition, in May 1997, we first released Microsoft Active AccessibilityTM
("MSAA"), a technology that provides ever-changing software programs and operating
systems a standard programming interface for accessibility aids. And our Synchronized
Accessible Media Interchange ("SAMI") captioning is available for anyone to add closed
captioning to a web site or CD media for people who are deaf or hard of hearing.
Microsoft has made a strong commitment to product-testing in the disability community
and has even offered its resources to other software developers in order to expand the
number of products available to people with disabilities. We have included a range of
accessibility requirements as part of our "Designed for Windows" Logo program to
encourage all manufacturers of Windows-based software to address accessibility.
4
Microsoft has also taken a leading role in improving the Internet experience for
people with disabilities. Microsoft Internet Explorer 5.0 offers many new accessibility
enhancements, including Microsoft IntelliSense technology designed to save time and
keystrokes (Using AutoComplete, AutoCorrect, AutoSearch, etc.). As in prior versions,
Explorer 5.0 continues to support accessibility aids and allows users to customize the
display. Through its efforts in the World Wide Web Consortium's Web Accessibility
Initiative, Microsoft has helped develop guidelines for web design practices that provide
flexibility for the user and enable assistive technology to function more effectively. We
have also played a role in implementing federal accessibility guidelines as a member of
both the Electronic and Information Technology Access Advisory Committee (for
Section 508 of the Rehabilitation Act) and the Telecommunications Access Advisory
Committee (for Section 255 of the Telecommunications Act).
Notably, our efforts encourage an environment in which accessibility becomes
part of mainstream product design and where assistive technology has a standard
interface across multiple product lines. We believe this will lead to plug-and-play
capabilities for assistive technology such that a user can walk up to any system (e.g., a
public voting kiosk) and interface with an assistive device (e.g., a Braille
keyboard/display via wireless link). Such a combination of accessibility enhancements
with plug-and-play connectivity would remove many of the limitations experienced by
people with disabilities.
Microsoft's commitment to accessibility arose entireIy without government
mandate, and the company continues to work with others in the computer and
information technology community to build upon these efforts and provide ever better
tools for everyone, including those with disabilities.4
B.
The Commission Should Proceed Carefully Where Its Jurisdiction to
Regulate is Not Clear.
Section 255, by its terms, applies only to telecommunications services,
telecommunications equipment, and customer premises equipment, In the Report and
Order issued along with the NOI, the Commission adopted rules to implement Section
255 with respect to such services and equipment. It also asserted ancillary jurisdiction to
extend accessibility requirements beyond the categories enumerated in the statute, to
reach two information services (voicemail and interactive menus) which, by definition,
are not directly subject to Section 255.5 The Commission concluded that these services
are "so integral" to the meaningful use of telecommunications services and equipment
that are covered by the statute that, if they were inaccessible and unusable, it would
seriously undermine the accessibility and usability of the underlying telecommunications
services and equipment6 The Commission declined to extend accessibility obligations to
any other information services because they are not "essential" to making
telecommunications services and equipment accessible.7
In the NOI, the Commission seeks comment on the necessity for and advisability
of extending its rules beyond the "discrete and limited"* assertion made to date, to cover
4 For more information on accessibility efforts at Microsoft, visit www.microsoft.com/enable.
5 NOIatq93.
6 NO/ at qy 99, 103.
7 NO/at7 107.
8 NOI at q 10%.
6
additional NTSPs. As of this writing, we understand it is likely that one or more parties
will seek judicial review of the Commission's extension of accessibility requirements
beyond telecommunications services and equipment. Before taking a step to extend its
ancillary jurisdiction, the Commission should be sure that it is currently on solid ground.
It does the disability community no good if well-intentioned but overreaching rules are
struck down by the courts - and in fact overreaching may undercut other, more limited
assertions ofjurisdiction. At a minimum, the Commission should be sure that any further
extension meets the Commission's own criteria by reaching only those products and
services that are integral to and essential for making telecommunications services and
equipment accessible to persons with disabilities.
Both Congress and the Commission have repeatedly stated their preference for
reliance on market forces rather than regulatory mandate to achieve their goals where
possible." That preference should be especially strong where the Commission would
have to exceed its core competency through an assertion of ancillary jurisdiction. A
cautious approach would be particularly warranted in this case because (as discussed
below) market forces are moving manufacturers and service providers to address
accessibility concerns without direct government intervention.
See, e.g., Annual Assessment of the Status of Competition in Markets for Delivery of Video
Programming, 13 FCC Red. 24284, 24481 (1998)(Kennard, concurring)("When Congress passed
the Telecommunications Act of 1996, it affirmed the principle that when it comes to innovation
and consumer choice, competition is preferable to regulation"); Telecommunications Services
Inside Wiring, 13 FCC Red. 36.59, 3704 (1997)("In the 1992 Cable Act, Congress specifically
embraced a `preference for competition' over regulation"); Price Cap Performance Reviewfor
Local Exchange Carriers, 10 FCC Red. 8961, 9241 (1995)(Quello concurring)("For the twenty
years I have served on this Commission we have repeatedly, in every regulatory area entrusted to
us, stressed the preferability of competition to regulation as a means of enhancing consumer
welfare").
7
C.
Market Forces Continue to Drive Advances in the Accessibility of New
Technologies.
Any assessment of the need for extending Section 255 to cover additional
products and services necessarily must examine the degree to which market forces may
already be driving the private sector toward accessible designs. As discussed below, the
information technology industry as a whole has strong incentives to design accessible
NTSPs, and as a result numerous efforts are ongoing around the world to develop
accessibility standards for information technologies.
One of the most powerful tools available to the government other than regulation
is the power of the purse - and Congress has used exactly that power to encourage
accessibility. The 1998 reauthorization of Section 508 of the Rehabilitation Act of 1973
imposes strict accessibility requirements for any electronic and information technology
("EIT") developed, maintained, procured, or used by a federal agency." The statute
directs the Architectural and Transportation Barriers Compliance Board (the "Access
Board"), after consultation with a number of federal officials including the Chairman of
the Commission, to develop and issue by February 7, 2000, standards setting forth (a) a
definition of EIT' ' and (b) the technical and functional performance criteria necessary for
achieving EIT accessibility. With few exceptions, all EIT procured by federal agencies
after August 7, 2000 will have to meet these accessibility criteria. And under the
IO
See 29 U.S.C. 9 794d.
II
The statute provides that the definition of EIT must be consistent with the definition of
information technology contained in the Clinger-Cohen Act, 40 U.S.C. $ 1401(3), which is
defined as "any equipment or interconnected system or subsystem of equipment, that is used in the
automatic acquisition, storage, manipulation, management, movement, control, display, switching,
interchange, transmission, or reception of data or information by the executive agency," and
specifically includes computers, ancillary equipment, software, finnware, support services, and
related resources.
Assistive Technology Act of 1998, states are required to provide assurances of their
compliance with Section 508 as a condition to receiving federal funds for their
technology assistance programs.`2 Thus, any manufacturer that hopes to sell EIT to a
federal or state government agency will have to design its products and services to meet
the accessibility standards developed by the Access Board - or miss out on the
opportunity to compete for billions of dollars in business.
The United States government is not alone in developing access standards. A
number of national and international standards have been developed and continue to
emerge. For example, two committees of the International Organization for
Standardization are currently working on accessibility issues related to software (IS0
Technical Committee 159 WG 5) and on technical systems and aids for disabled and
handicapped persons (IS0 Technical Committee 173). The European Commission has
issued a document providing advice to all European standards bodies regarding access to
information technology for people with disabilities (SOGITS No. 1032). Japan is leading
an effort in the International Electrotechnical Commission to define, expand, and publish
guidelines that address ease-of-use of appliance controllers to meet the needs of people
with disabilities (IEC Technical Committee 100). And the World Wide Web Consortium
has published a set of Web Accessibility Initiative Guidelines that provide suggested
design practices that will enable assistive technology to function more effectively.13
Access to information technology is clearly on both the domestic and
international agendas. The level of interest and effort evidenced by the activities of
I2
See 29 U.S.C. 4 3011. Some states, such as Texas, require vendors to certify that their products
meet accessibility standards. See, e.g.,Tex. Gov't Code Ann. 0 2157.005(b).
I3
The guidelines can be found at htt&iwww.w3,or&TR/WD-WAI-PAGEAUTHI.
9
Congress, the Access Board, the information technology industry, and international
standards bodies is likely to lead to further investment in and advancement of
accessibility technologies in many countries across multiple products and services. And
as accessibility becomes the standard - and increasingly a requirement in public and
private sector procurements - manufacturers will have ever greater incentive to design
equipment that will enhance rather than degrade opportunities for people with disabilities.
D.
Accessibility Requirements Should Be Extended Only to Non-
Telecommunications Equipment and Services That are Integral to and
Essential for Telecommunications Accessibility.
Microsoft recognizes that, although sincere and laudable, voluntary efforts and
market incentives are no guarantee that emerging technologies will be accessible to
persons with disabilities. The adoption of Section 2.55 itself illustrates the fact that good
intentions are not always sufficient and that government intervention may be necessary to
achieve the timely delivery of accessible products and services. But there is good reason
to believe that the information technology industry will be different in this respect.
The contrast between the telecommunications systems of the twentieth century
and the information technologies of the new millennium are stark. The nation's original
telecommunications systems arose in a monopoly environment at a time when there was
little consciousness of the concerns of the disabled. Information technology is a much
more recent phenomenon, born in an era when disability issues have entered the national
consciousness and are an important part of the domestic policy agenda (as evidenced by
the Americans with Disabilities Act and other legislation).r4 Information technology is
14
As the Commission noted, an estimated 54 million Americans have disabilities, making them the
largest minority group in the country - a minority that is virtually certain to grow as the portion of
the population over age 5.5 increases with the aging of the Baby Boom generation. See NOI at 12.
10
I I. ._ _.-.-.-- I - . .._ _- __... x. .--~.----
also developing in a highly competitive market where failure to respond to consumer
demands can lead to business failure. In such circumstances, ensuring accessibility is not
only the right thing to do, but also the smart thing to do. As a result, accessibility has
been a concern from early in the history of the information technology industry in a way
that it was not with telecommunications.
Nonetheless, there is sure to be some information technology integral to the
provision of telecommunications services that is not accessible. Assuming the
Commission's assessment of its jurisdiction is correct, the question then becomes which
such technologies the Commission should require to meet accessibility standards and
how it should make that determination. In the Report and Order, the Commission
exercised its ancillary jurisdiction to reach NTSPs that might render telecommunication
(i.e., covered) services effectively inaccessible. It follows, then, that if in the future the
Commission finds that a non-regulated environment has failed to deliver accessible
NTSPs that are integral to essential telecommunications services, the Commission would
again have a basis for proposing a regulatory solution.
The challenge, of course, is to devise a mechanism supple enough to respond to
advances in technology and changes in the nature and architecture of telecommunications
services going forward. Rather than address individual Internet telephony or CPE
technologies in the absence of clear guidelines, Microsoft suggests the following, long-
term approach to the fundamental questions raised by the NOI Specifically, the
Commission should:
o Develop a list of criteria for determining when an NTSP is integral to and
essential for the accessibility of telecommunications equipment and
services.
11
. _ .---.-.,. -. ,..-.-
o Leave this docket open as a vehicle for an annual assessment of
developments in the impact of specific NTSPs on the accessibility of
telecommunications equipment and services.
o Whenever a particular NTSP appears to meet the established criteria,
initiate a rulemaking to add that NTSP to the list of equipment and
services subject to the Commission's accessibility requirements.
This approach will create a "living" mechanism that can respond as societal norms and
technology change - e.g., when a new telecommunications service or product develops or
an existing NTSP reaches critical mass. By refreshing the record annually, the
Commission will have available the information it needs to track and assess technological
innovations on an ongoing basis and to create a record for proposing a further assertion of
ancillary jurisdiction, if necessary.
In its discussion of voicemail and interactive menus, the NOI suggests some
criteria that would be relevant to this analysis, First, the prevalence or widespread
deployment of a particular NTSP would be an important factor. I5 No NTSP, no matter
how ingenious, would be essential if it is lightly deployed or sparingly used in connection
with telecommunications. Second, an NTSP must cross the threshold of "becoming
available as mainstream services" that are "critical to successful participation and
competition in our society. "16 This factor would draw a distinction between a "neat-to-
have" and a "got-to-have" NTSP - and only the latter would support an assertion of
ancillary jurisdiction. The Commission should use this proceeding to develop and refine
the criteria for bringing an NTSP under the accessibility requirements.
I5
NO/ at 7 100.
16
Id. (quoting comments by UCPA).
12
In order to apply these criteria, we suggest that the Commission establish an
annual comment period for collecting and assessing information from the public on the
extent to which developments in telecommunications equipment and services may have
rendered an NTSP integral and essential. This would be similar to the current practice of
collecting information on competition in the markets for the delivery of video
programming and for commercial mobile radio services." The Commission could use
this information to create a "watch list" of NTSPs that are of particular interest for future
monitoring. If this information indicated that a particular NTSP met the established
criteria, the Commission would have a basis for proposing to further assert its ancillary
jurisdiction with respect to the NTSP and for conducting an expedited rulemaking to
impose accessibility requirements."
In addition, there may be times when a new service arises that the Commission
decides to classify (or even reclassify) as a telecommunications service. Such a
determination would have immediate implications for the NTSPs that operate with that
technology. Thus, any time that the Commission identifies a new telecommunications
service, it should initiate a follow-on proceeding to determine which, if any, NTSPs
should be subject to the accessibility rules. In this way, as views on what constitutes
"telecommunications" evolve the NTSPs that are integral and essential will automatically
evolve as well.
I?
See, e.g., Annual Assessment of the Status of Competition in Markets for the Delivery of Video
Programming, 13 FCC Red. 24284 (1998); A nnual Report and Analysis of Competitive Market
Conditions With Respect to Commercial Mobile Services, 14 FCC Red. 10145 (1999).
Again, this assumes that the assertion of ancillary jurisdiction survives judicial review.
13
. ----.- ----I_- l_l_- -
CONCLUSION
Microsoft is committed to the proposition that advances in technology must not
become setbacks to people with disabilities. We support the Commission's efforts to
ensure that the all people have meaningful access to and use of emerging technologies.
We encourage the Commission to move carefully before extending the requirements of
Section 255 any further beyond its specific mandate in light of jurisdictional uncertainties
and evidence that market forces are driving progress in accessibility. The process
outlined herein should enable the Commission to maximize accessibility while
minimizing the bases for judicial review.
14
Microsoft looks forward to continuing to work with the Commission and other
groups to develop standards and practices that enable all people to participate fully in the
Information Age.
Respectfully submitted,
MICROSOFT CORPORATION
_- - `;-.., _ s\
By: c > y.l;-c I-* \.
,,, L-4
__.
David A. Bolnick, Ph.D.
Accessibility & Disabilities Group
MICROSOFT CORPORATION
One Microsoft Way
Redmond, WA 98052
425-936-8342
www.microsoft.com/enable
By:
Federal Regulatory Affairs Manager
MICROSOFT CORPORATION
21 DuPont Circle
Suite 5 10
Washington, DC 20036
202-263-5920
.
By:
HARRIS, WILTSHIRE & GRANNIS LLP
1200 Eighteenth Street, N.W.
Washington, DC 20036
202-730-1350
Counsel for Microsoft Comoration
January 13,200O
15
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